Citation Nr: 0921711
Decision Date: 06/09/09 Archive Date: 06/16/09
DOCKET NO. 03-32 785 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for right ear hearing loss.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the
United States
WITNESSES AT HEARING ON APPEAL
Veteran and A. H.
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The Veteran served on active duty from November 1997 to July
2001.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a July 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky, wherein the RO denied service connection for right
ear hearing loss. The Veteran timely appealed the RO's adverse
July 2002 rating determination to the Board, and this appeal
ensued.
In May 2006, the Veteran testified before the undersigned
Veterans Law Judge at the Louisville, Kentucky RO. A copy of
the hearing transcript is contained in the claims file.
In June 2007, the Board remanded the instant claim to the RO
for additional development. The requested development has been
completed, and the case has returned to the Board for appellate
consideration.
FINDING OF FACT
The RO last finally denied the Veteran's original claim of
service connection for right ear hearing loss in a January 2002
rating decision. The RO provided notice of this action in
January 2002, but a timely appeal was not perfected.
2. The evidence added to the record since the January 2002 RO
decision does not relate to an unestablished fact necessary to
substantiate the claim of service connection for right ear
hearing loss (i.e., nexus to service), and does not raise a
reasonable possibility of substantiating the claim.
3. The evidence of record does not demonstrate that the
Veteran's right ear hearing loss for VA compensation purposes
is etiologically related to his period of military service; or
that sensorineural hearing loss of the right ear was manifested
to a compensable degree within a year of service discharge.
CONCLUSION OF LAW
Right ear hearing loss was not incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.385 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2008).
Proper VCAA notice must inform the claimant of any information
and evidence not of record that is necessary to substantiate
the claim. The Veteran should be informed as to what portion of
the information and evidence VA will seek to provide, and what
portion of such the claimant is expected to provide. Proper
notification must also invite the claimant to provide any
evidence in his possession that pertains to the claim in
accordance with 38 C.F.R. § 3.159(b)(1). See, also, the United
States Court of Appeals for Veterans Claims (Court) decision in
Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21
(2004).
In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the
United States Court of Appeals for the Federal Circuit (Federal
Circuit) held that a comprehensive VCAA letter, as opposed to a
patchwork of other post-decisional documents (e.g., statements
or supplemental statements of the case), was required. The
Federal Circuit further held that such a letter should be sent
prior to the appealed rating decision or, if sent after the
rating decision, before a readjudication of the appeal. Id.
With regard to the service connection issue decided in the
decision below, VA provided the Veteran with pre-adjudication
notice on the Pelegrini II VCAA elements in an April 2002
letter. The letter informed the Veteran to let VA know of any
evidence he thought would support his claim for service
connection for right ear hearing loss that it was his
responsibility to make sure that VA received all requested
records not in the possession of a Federal entity, and told him
where to send what "we need."
In addition, the Court has also held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)
apply to all five elements of a service connection claim,
including the degree of disability and the effective date of an
award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The
Veteran was informed of the Dingess elements in a March 2006
letter. Id.
In Pelegrini II, the Court also held that VCAA notice should be
given before an initial agency of original jurisdiction (AOJ)
decision is issued on a claim. Pelegrini II, 18 Vet. App. at
119-120. The Veteran was provided pre-adjudication VCAA notice
via an April 2002 letter. Id.
Regarding VA's duty to assist the appellant with his service
connection claim decided in the decision below, relevant
service treatment and personnel records, post-service VA
examination and treatment reports and testimony and statements
of the Veteran have been associated with the claims file. In
September 2008, pursuant to the Board's June 2007 remand
directives, VA examined the Veteran to determine the presence
of any right ear hearing loss for VA compensation purposes and
its etiological relationship, if any, to his period of active
military service. A copy of the September 2008 VA audiological
examination report has been associated with the claims file.
Accordingly, the Board finds that there is no further
assistance that would be reasonably likely to substantiate the
claim for service connection for right ear hearing loss
analyzed in the decision below.
II. Laws and Regulations
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§3.303(a) (2008).
In addition, certain chronic diseases, including sensorineural
hearing loss, shall be presumed to have been incurred in or
aggravated by service if they become manifest to a compensable
degree within one year following separation from service. See
38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§
3.307, 3.309 (2008).
Under 38 U.S.C.A. § 1154(b) (West 2002) and 38 C.F.R. §
3.304(d) (2008), service connection for a combat-related injury
may be based on lay statements alone, but do not absolve a
claimant from the requirement of demonstrating current
disability and a nexus to service, as to both of which
competent medical evidence is generally required. Beausoleil
v. Brown, 8 Vet. App. 459, 464 (1996).
The provisions of 38 U.S.C.A. § 1154(b) do not allow a combat
Veteran to establish service connection with lay testimony
alone. Rather, the statute relaxes the evidentiary
requirements for determining what happened during service and
is used only to provide a factual basis for a determination
that a particular disease or injury was incurred or aggravated
in service, not to link the service problem etiologically to a
current disability. Gregory v. Brown, 8 Vet. App. 563, 567
(1996).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies 500,
1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or
when speech recognition scores using the Maryland CNC Test are
less than 94 percent. 38 C.F.R. § 3.385.
III. Analysis
The Veteran contends that he currently has right ear hearing
loss as a result of having been exposed to grenades, mortars,
artillery, missiles, and rocket fire while serving as a machine
gunner assigned to an infantry unit ( e.g., 82nd Airborne
Division, Delta Company, 3rd Division, 504th Company) in
Eastern Europe (e.g., Georgia, Kosovo, Macedonia and the
Balkans region). He also maintained that it is result of
having fired various types of weapons on the firing range
without adequate hearing protection. He has denied any post-
service noise exposure. (See, Transcript (T.) pages (pgs.) 2-
5), and April 2005 and September 2008 VA audiological
examination reports).
The Veteran's DD 214 reflects that his military occupational
specialty was an infantry weapons man for three years and four
months during service. He was not awarded any medals or
decorations indicative of combat service. While the Veteran's
DD 214 reflects that the Veteran did not have any foreign or
sea service, other United States Army service personnel
documents show that the Veteran's unit, Delta Company, 3rd
Division, 504th Company, was stationed at CAMP BONDSTEEL ,
Kosovo. (See, DD Form 4/1, dated and signed by the Veteran in
February 2000).
As the Veteran's DD 214 and DD Form 4/1 denotes that the
Veteran was assigned to an infantry unit stained in Kosovo,
respectively, this is considered conclusive evidence of
military noise exposure. 38 C.F.R. § 3.304(f) (2008).
Following a careful review of the record, the Board finds that
the preponderance of the evidence is against the Veteran's
claim for service connection for right ear hearing loss. In
reaching the foregoing determination, the Board finds that in-
service audiograms do not reveal that the Veteran had right
hearing loss that meets the standard for VA compensation
purposes. (See, September and November 1997, May 1988, August
1999, and January 2001 audiograms). On a Report of Medical
Examination, DD Form 2808, dated in January 2001, the Veteran's
ears were evaluated as "normal." On a January 2001 Report of
Medical History, the Veteran denied ever having had hearing
loss. The Veteran underwent a Medical Board proceeding and was
discharged for an un-related physical disability.
Post-service VA outpatient and examination reports, dating from
July 2003 to September 2008, contain a diagnosis of hearing
loss as early as 2002. (See September 2002 VA general medical
examination report containing a diagnosis of hearing loss).
These same reports, however, are wholly devoid of any evidence
that the Veteran currently has right ear hearing loss
disability for VA compensation purposes in accordance with 38
C.F.R. § 3.385. See April 2005 and September 2008 VA
audiograms).
As noted above, in order to constitute a hearing loss
disability for VA compensation purposes, auditory threshold in
at least one of the frequencies 500, 1000, 2000, 3000, 4000
Hertz must be 40 decibels or greater; or the auditory
thresholds for at least three of the frequencies 500, 1000,
2000, 3000, or 4000 Hertz must be 26 decibels or greater; or
the speech recognition scores using the Maryland CNC Test must
be less than 94 percent. There is no evidence that the
Veteran's auditory thresholds in any frequency in the right ear
are 40 decibels or greater or that auditory thresholds for at
least three frequencies are 26 decibels or higher. Id.
Finally, the Board notes that none of the medical evidence
shows speech recognition scores for the right ear of less than
94 percent. Id. As such, the Board finds that the medical
evidence of record preponderates against a finding that the
Veteran has a current right ear hearing loss disability for VA
compensation purposes. Service connection cannot be
established without a current disability. Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, entitlement
to service connection for right ear hearing loss is not
warranted.
In making this determination, the Board has considered the
provisions of 38 U.S.C.A. § 5107(b), but there is not such a
state of approximate balance of the positive evidence with the
negative evidence to otherwise warrant a favorable decision.
The Board has considered the Veteran's written contentions and
testimony with regard to his claim for service connection for
right ear hearing loss. While the Board does not doubt the
sincerity of the Veteran's belief that service connection
should be granted for this disability, as a lay person without
the appropriate medical training or expertise, he simply is not
competent to provide a probative opinion on a medical matter-
such as the diagnosis and etiology of a current disability.
See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
For all the foregoing reasons, the Board finds that the claim
of entitlement to service connection for right ear hearing loss
must be denied. In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. As the preponderance of the evidence is against the
Veteran's claim for service connection for right ear hearing
loss, that doctrine is not applicable. See 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102 (2008); Ortiz v. Principi, 274 F.3d
1361, 1365 (Fed. Cir. 2001).
ORDER
Service connection for right ear hearing loss is denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs